Larry DOMINGUEZ, Plaintiff-Appellant, v. Ruben R. ROSAS; et al., Defendants-Appellees, 149 F. App'x 665

MEMORANDUM California state prisoner Larry Dominguez appeals pro se the district court’s dismissal of his action without prejudice for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s determination that a prisoner failed to exhaust de novo and its findings of fact for clear error. Ngo v. Woodford, 403 F.3d 620, 622 (9th Cir.2005). We vacate the order of dismissal and remand. The district court decided this case before our decision in Ngo v. Woodford, 403 F.3d 620.

In this case, as in Ngo, Dominguez’s appeal was rejected by the prison as untimely, and he challenged the untimeliness finding; this was sufficient to exhaust available administrative remedies. See id. at 625 (noting that after the Appeals Coordinator rejected a California state prisoner’s challenge regarding the timeliness of his grievance, the prisoner-plaintiff “could go no further in the prison’s administrative system; no remedies remained available to him”).

In addition, the Ngo court rejected defendants’ contention that a civil action should be barred based on procedural default where a prisoner-plaintiffs grievance has been found to be untimely at the administrative level. See id. at 631 (“We also hold that the PLRA’s exhaustion requirement does not bar subsequent judicial consideration of an exhausted administrative appeal that was denied on state procedural grounds.”). We deny Dominguez’s motion for appointment of counsel as unnecessary. VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.